Scope of easement to operate a neighboring golf course determines whether intrusion of dozens of golf balls a year to victims’ property constitutes a trespass

A couple that bought a home next to a golf course sued the golf course for trespass because of all the golf balls that landed on their property. Although the golf course attempted to take remedial measures to stop golf balls from landing on the couple’s property, roughly 90 balls would land on the property each year, a dozen of which struck the house. The couple won in the trial court which awarded them $100,000 in compensatory damages for property damage and $3.4 million in emotional distress damages. The trial court also issued an injunction preventing play on the 15th hole under the golf club implemented additional remedial measures, such as reconfiguring the hole or installing netting.


The Supreme Judicial Court of the Commonwealth of Massachusetts reversed and remanded the case to the trial court for more proceedings. Tenczar v. Indian Pond Country Club, Inc., 2022 WL 17813649, — N.E.3d — (Mass. 2022). The court noted that the property was subject to an easement that allowed for the “reasonable and efficient operation” of the golf course in a “customary and usual manner,” and that the trial judge needed to determine whether that right made the homeowners vulnerable to golf balls hitting the house or whether the golf course was designed improperly and thus could not take advantage of the immunity granted by the covenant or easement. The Supreme Judicial Court further found that some “errant shots” were inevitable if an owner lives next to a golf course but that a “predictable pattern of errant shots” may be a trespass if they “arise from unreasonable golf course operation.”


The declaration filed by the defendant when it developed the properties around the golf course granted golfers an easement for access to “unimproved areas” of the residential lots to “retrieve errant golf balls.” That meant that the residential owners were not only vulnerable to golf balls invading their property but to golfers entering to retrieve those golf balls. Since the governing documents only gave golfers access to unimproved parts of the residential lots to retrieve golf balls, the trial judge found no easement that would allow golf balls to strike the house. But the trial judge failed to determine whether the covenant subjecting the homeowners to the operation of a reasonable golf course next door had been violated by the harms they suffered through the intrusion of those golf balls.


The Supreme Judicial Court found that the golf course easement subjects the homeowners to some level of intrusion by golf balls and that the homeowners “came to the nuisance,” knowing they were buying property next to the golf course. Since the easement both allowed and required “reasonable” operation of the golf course, the trespass question was really akin to a nuisance question, i.e., was the operation reasonable and thus not an invasion of the plaintiffs’ property rights?


The court also distinguished other cases that found the intrusion of golf balls to be a trespass. Fenton v. Quaboag Country Club, Inc., 233 N.E.2d 216, 353 Mass. 534, 539 (Mass. 1968); Amaral v. Cuppels, 831 N.E.2d 915, 64 Mass. App. Ct. 85, 91 (Mass. App. Ct. 2005).

Leave a Comment